Delaying Retirement via Procedural Shortcut: The Fragile Promises of China’s Lawmaking Reforms
The NPCSC enacted controversial retirement reforms without following the typical legislative process, laying bare the fragility of its commitment to deliberation and public participation in lawmaking.
Welcome to a special issue of NPC Observer Monthly, a (mostly) monthly newsletter about China’s national legislature: the National People’s Congress (NPC) and its Standing Committee (NPCSC).
Today, I’m crossposting an article that my colleague and coauthor Taige Hu and I have just published in the Made in China Journal that comments on the NPCSC’s failure to observe its typical legislative process before enacting China’s historic retirement-age reforms last September. In this version, I have reformatted the citations roughly according to The Bluebook, but have otherwise preserved the Journal’s British spelling and punctuation. The article will appear in “print“ in volume 10, issue 1 of the Journal, forthcoming later this year. Please cite the original version.
On 16 November 1957, China’s labour minister Ma Wenrui appeared before the country’s top legislature, the Standing Committee of the National People’s Congress (NPCSC), with proposed updates to China’s retirement scheme. Faced with a deluge of secondary-school graduates but insufficient job openings, the government hoped to make it easier for older workers to retire.1 The proposal would, in general, require men to retire at age 60, white-collar women at 55, and blue-collar women at 50. Women must retire earlier, officials contended, because they were ‘generally weaker’ than men.2 As was typical of the time, the NPCSC endorsed the proposal ‘in principle’ the same day, while allowing the State Council to fine-tune the rules before finalising them. The State Council soon distributed the draft law to localities for consultation and later reported that more than 3.1 million workers participated in discussions over the following month. Some (unsuccessfully) questioned the disparate treatment of white-collar and blue-collar female workers, but there was otherwise no serious objection to the proposed changes, according to an official account. The State Council formally promulgated the rules in February 1958.
During the Cultural Revolution (1966–76), China’s nascent retirement system suffered a fatal blow.3 Ultra-radicals attacked the country’s earliest social insurance scheme for ‘breeding loafers’ (养懒汉) and ‘corrupting the working class’ (腐蚀工人阶级).4 The movement soon paralysed the entire labour bureaucracy. By the end of the decade-long turmoil, more than 2 million eligible workers were waiting for the state to process their retirement applications.5 To clear the backlog and reinvigorate the workforce, the State Council came to the NPCSC with a new pair of retirement rules in May 1978—just weeks after the legislature had resumed regular meetings after the Cultural Revolution. Some of the 1958 rules no longer suited the circumstances and needed updates, the State Council said. Among other changes, its proposal would reinstate separate retirement systems for ‘workers’ (工人) and ‘cadres’ (干部), which roughly corresponded to manual and nonmanual labourers under previous rules; create a special retirement status (with full salary) for veteran cadres; and otherwise treat ordinary cadres and workers equally, along with a general increase in their pension benefits.6 The State Council proposed no change, however, to the 1958 retirement ages. The NPCSC swiftly approved the rules ‘in principle’ after a two-day session. The default retirement ages would remain in place, as it turned out, until almost half a century later.
Meanwhile, China experienced a sea change in demographics. Life expectancy has risen rapidly, from 48.8 years in 1958 to 72 by the turn of the century, and to 78 today. Due to socioeconomic development and the One-Child Policy, fertility in China has declined in an equally swift fashion: it has dropped far below the replacement level of 2.1 births per woman since the 1990s and is now among the lowest in the world.7 Together, these two forces—rising longevity and declining fertility—have accelerated population ageing, which in turn has led to a shrinking workforce, mounting pressure on healthcare and social security systems, and widening welfare inequities among different social groups.8 The Chinese Academy of Social Sciences projected in 2019 that, if the trend continues, China’s main pension fund will run out of money by 2035.
Delaying retirement, as the Chinese leadership was well aware, could mitigate those problems by replenishing the labour force and the pension fund.9 The labour ministry studied such a move as early as 2005, before the Chinese Communist Party eventually added it to the official reform agenda in late 2013. Since then, the Party has repeatedly vowed to raise retirement ages, most recently at the Third Plenum of its Twentieth Central Committee in July 2024. Yet, any retirement delay would have a direct, tangible impact on hundreds of millions of Chinese, who have, for more than a decade, consistently and overwhelmingly opposed the idea in successive polls conducted by various state media outlets. At the top of their concerns were youth unemployment, age discrimination against older workers, and the loss of childcare provided by retired grandparents. Because of the move’s unpopularity, no concrete plan to raise the retirement ages materialised—until last autumn.
On 10 September 2024, the NPCSC suddenly announced that it was considering legislation to raise retirement ages, without the usual prior indication that a bill was in the pipeline, much less drafted and ready for legislative deliberation. Three days later, it passed the ‘Decision on Gradually Raising the Statutory Retirement Ages’ (关于实施渐进式延迟法定退休年龄的决定), or the ‘Reform Plan’. The Reform Plan has three core provisions: first, it gradually raises the retirement age, over 15 years, to 63 for men, 58 for women in managerial or specialist positions (that is, redefined ‘cadres’), and 55 for women in other roles (that is, redefined ‘workers’); second, it will gradually increase the minimum years of contribution required to receive post-retirement benefits from 15 to 20; and third, it allows for ‘flexible’ retirement, whereby eligible employees may retire up to three years earlier or later. The Reform Plan took effect on 1 January 2025.
Though the swift process was reminiscent of the way the NPCSC set and reaffirmed the original retirement ages decades earlier, the times are different. Much like China’s demographics, the NPCSC’s legislative procedure has undergone a profound transformation in the interim. As we will explain, the Chinese legislature has embraced, in rhetoric and in practice, procedural reforms that grant lawmakers more time to review and propose changes to legislative drafts, while considering the views of a broad range of stakeholders, including the public. Yet, that deliberative process was wholly absent from the momentous retirement reform, laying bare the fragility of the legislature’s promises.
‘Scientific, Democratic, and Law-Based Lawmaking’
In official discourse, China’s post–Cultural Revolution lawmaking reforms have been subsumed under the slogan of ‘scientific, democratic, and law-based lawmaking’ (科学立法、民主立法、依法立法). According to an authoritative commentary by legislative officials, this trifecta of principles entails both substantive and procedural commands. Legislation must address actual issues and ‘reasonably’ prescribe the rights and obligations of private and state entities; must ‘reflect the will of the people’; and must conform to higher-level norms in China’s legislative hierarchy. And such goals are achievable only with a process that, among others, promotes thorough and informed deliberations and incorporates public participation.
The NPCSC first moved to extend legislative deliberations. For about the first 30 years of its existence, the Chinese legislature passed all but a few bills after a quick single review, as the 1957 and 1978 retirement laws illustrate. It began to move away from this approach soon after legislative business resumed after the Cultural Revolution. To ‘prevent hasty deliberations and imprudent considerations from undermining the stability of the law’, legislative leaders decided in March 1983 to generally add an extra review to allot more time for discussing and improving draft laws. This two-review process was then codified in 1987 in the NPCSC’s rules of procedure. To some lawmakers, this longer time frame nonetheless still felt ‘hasty’, as they worried that the quality of legislation would suffer from insufficient time to digest certain bills. With a third review down the line, they could instead use the second reading for ‘in-depth discussions over a draft law’s key issues, contentious points, and areas of disagreement’. The NPCSC leadership endorsed this proposal in April 1998, believing that more thorough deliberations would promote ‘the quality and efficiency of legislation’. The three-review rule was formally codified in the landmark Legislation Law (立法法) in 2000 and still applies today (with exceptions for uncontroversial, simple, or emergency bills).
The lengthier legislative process in turn created the space for public consultations, which over time have become another key feature of Chinese lawmaking. In January 1988, the NPCSC carried out the first public consultation on a draft law under the current (post-1982) constitutional order. It published the draft in national newspapers and requested that citizens send in comments by mail. It was not until 2005 that public participation eventually shifted online and instantly reached new heights. The very first bill released on the legislature’s website, a draft Property Law (物权法), received 9,605 comments—almost three times the record of the comment-by-mail era. Despite the technological upgrade, the NPCSC remained highly selective in its consultations, releasing only 13 drafts during the 20 years after the 1988 consultation. But legislative leaders soon instituted improvements. They first required in 2008 that the legislature generally solicit comment on the first draft of every bill, before extending that soft requirement to any additional non-final draft of a bill five years later. Almost 350 drafts have been released since 2008 as a result.
In the meantime, the Chinese legislature has implemented additional reforms to broaden informational input into legislative deliberations. They include involving academics and other experts at various stages of the legislative process—from formulating legislative agendas to revising draft laws, to assessing legislation’s feasibility, impact, and potential enforcement problems prior to enactment—and establishing ‘grassroots legislative outreach offices’ (基层立法联系点) to proactively solicit public input. And, as we have alluded to, the legislature has always allowed for expedited legislative review under specified circumstances and reserved the discretion to waive public consultation when necessary. But the default process—three reviews coupled with two rounds of public consultation—remains the standard.
The ‘Quasi-Statutory Decision’ Shortcut
When the Party reiterated the goal of raising retirement ages at the 2024 Third Plenum—this time with apparent urgency—the NPCSC found itself between a rock and a hard place. On the one hand, the reform is wide-ranging and deeply unpopular, as discussed earlier. It is also quite complex, which has led policy experts to propose a range of options based on different combinations of the relevant parameters.10 The case for following the standard process to evaluate these proposals and their implications could not have been stronger. On the other hand, doing so would have opened the floodgates to a deluge of comments. The public would have seized on an opportunity to air their views, as they did with comparable social legislation in the past; the labour contract legislation of 2007 and 2012, for example, together received almost 750,000 comments.11 So, too, would experts have eagerly offered their input. The sheer amount of information would inevitably have compelled the NPCSC to prolong the process by months, if not years, especially given the strong possibility that an overwhelming majority of public comments would have opposed the reform. This prospect would have been politically untenable.
Faced with this dilemma, the NPCSC ultimately chose political expediency: it enacted the Reform Plan as a ‘quasi-statutory decision’12 (QSD, 准法律决定), a category of legislation exempt from the procedural paradigm. Officially known as ‘decisions on legal issues’ (有关法律问题的决定), QSDs are not ‘statutes’ (法律) but nonetheless carry statutory force.13 Because the NPCSC adheres to the unwritten principle that a statute should be comprehensive and infrequently amended, QSDs fill important gaps. Ordinarily, they are short instruments designed to address narrow issues, tackle urgent matters when a comprehensive statute cannot be drafted in time, or develop new legal schemes without formal statutory changes.14 For these reasons, since 1987, NPCSC rules have allowed it to adopt a QSD after a single review without public consultation, even as its legislative process has otherwise grown more sophisticated. Over the past two decades, the legislature has rarely taken a second look at a QSD, and, even when it did, it never solicited public comment.
The Reform Plan’s unusual features suggest the State Council may have deliberately exploited that abbreviated process. Like a typical QSD, it begins with a brief (five-article) main text, which announces the new retirement ages and lays down general principles for implementing the reform. Then, in a break with convention, the Reform Plan proceeds to a separately titled, visually distinct document: ‘Measures of the State Council on Gradually Raising the Statutory Retirement Ages’ (国务院关于渐进式延迟法定退休年龄的办法; our emphasis). Despite appearances to the contrary, officials emphasised that this lengthy document is an integral part of the Reform Plan. The Measures introduce the other two pillars of the reform (longer pension contribution periods and flexible retirement), address various subsidiary issues (such as the application of the reform to unemployed individuals), and include detailed charts that allow affected citizens to look up their new retirement ages and contribution periods. This level of detail brings the Reform Plan closer to a statute than an average reform-initiating QSD.
In addition, the State Council likely drafted the bill in a manner designed to restrict meaningful legislative review of the Measures. The Reform Plan’s main text states that the NPCSC ‘approved’ (批准) the Measures—indicating that lawmakers, at best, had less room than usual to propose changes to the embedded document and, at worst, had to vote on it as drafted.15 As evidence, the Reform Plan’s accompanying legislative report addresses only lawmaker comments on the short main text. While it is true that the State Council also drafted and submitted the 1957 and 1978 retirement laws—both under its name—for the NPCSC’s ‘approval’, the legal landscape of the time necessitated that process. Before 1982, the NPCSC’s legislative power was far more circumscribed than it is today, while the State Council had no authority at all to issue binding regulations. In response to the heightened legislative demand shortly after the PRC’s founding and the Cultural Revolution, the NPCSC resorted to legislating, in part, by approving documents that the State Council sought to issue.16 The 1982 Constitution subsequently expanded the legislative powers of both institutions and more clearly demarcated the boundaries of their authority. Reviving that archaic practice in 2024 was thus not only unnecessary but also legally dubious under today’s constitutional framework.17 Not to mention the resulting Reform Plan—an NPCSC enactment with a component bearing the State Council’s name—is an odd hybrid previously unknown to Chinese law.
That said, the State Council’s drafting choices could not—and indeed should not—have bound the NPCSC. The latter was free to rewrite the Reform Plan so that it contained a unified text. It also faced no legal obstacles to waiving the single-review exception and conducting further review, as it could with any QSD. There has long been scholarly argument that QSDs, like statutes, should comply with the Legislation Law; otherwise, this Law would become a ‘dead letter’ (形同虚设), as the legislature could simply circumvent its more stringent procedures by enacting important legislation as QSDs.18 This view finds additional support in the March 2023 amendments to the Legislation Law, which added a new article applying ‘the relevant provisions’ of the Law to QSDs. This new clause is admittedly cryptic. But there is early scholarly agreement (which we second) that it requires, at a minimum, that QSDs creating or modifying generally applicable legal schemes—such as the Reform Plan—follow the same procedures as statutes: three reviews with public consultations, unless a specified exception applies.19 No such exception would have applied to the Reform Plan.
‘Breaching the Contract with an Entire Generation’
The public predictably reacted to the Reform Plan with ire, confusion, and anxiety. Yet, it is now only possible to glimpse that reaction through contemporaneous press coverage, as China’s censorship machine swiftly kicked into high gear after the document’s release. According to The Economist, of the more than 5,200 replies to Xinhua’s Weibo post announcing the news, only about two dozen remained visible just four days later—‘none of them disapproving’. Most recorded comments expressed apprehension about the reform’s substantive impact on people’s livelihoods. Few directly attacked the lack of process, though that concern underlay posts worrying about a sudden further delay in retirement.
That sentiment more clearly drove netizens to widely circulate an 11-year-old front-page commentary from the China Youth Daily (中国青年报). That 2013 piece by Cao Lin, the outlet’s then chief commentator, responded to a social security official’s call to delay retirement—a few months before the Party would officially endorse the proposal. Among other criticisms, Cao rebuked the suggestion that the Chinese public should stomach a future delay in retirement simply because it is ‘a common international practice’. He argued that laws and policies, especially those that ‘concern significant public interests’, must provide the people with ‘stable expectations’. ‘The age of retirement and the timing of pension payments,’ he stressed, ‘are the State’s commitments to and agreements with the people—contracts that must not be breached lightly.’ He observed that retirement reforms in developed countries followed ‘due legal process, democratic channels, and consultation with the people’. If China were to dispense with the necessary processes, it would ‘breach the contract with an entire generation’ (与一代人的违约), Cao presciently warned. Eleven years later, reposts of his op-ed were quickly censored and the original disappeared from the newspaper’s online archives.
The Chinese state’s impulse to pass the Reform Plan hastily was understandable, as strong public opposition had forced it to repeatedly postpone the reform over the past decade. By pushing the whole package through the legislature on a highly expedited timeline, it could present the reform as a fait accompli, thereby rendering moot public calls for reconsideration and pre-empting attempts to bargain with the government over specifics. Yet, by settling for a quick fix for the looming crisis, the Chinese Government myopically sacrificed the greater benefits it could have gained by extending the legislative timetable—even by just a few months—to allow for further deliberation and consultation.
The NPCSC itself has recognised that ‘public participation can bolster the legality and fairness of legislative decision-making’. As it elaborated in a 2019 volume touting its legislative accomplishments: ‘When the decision-making process is undemocratic and public participation insufficient, the enacted laws may present the will of only a minority, making them unjust; they may also lie dormant once enacted, failing to solve actual problems’. Taking the time to publicly justify the Reform Plan and to credibly consult the public on such a complex and far-reaching matter—just as the State Council did in 1957—could have, in the best case envisioned by the NPCSC, fostered ‘a sense of identification’ (认同感) with the reform and ‘raise[d] the public’s willingness to abide by’ it. At a minimum, it could have ‘confer[red] procedural legitimacy on the NPCSC, the process, and the resulting legislation’ and ‘help[ed] lessen, if not prevent, opposition’ to the reform.
In comparison, the costs of cutting procedural corners here were immense. Not only did this move stand in tension with the NPCSC’s decades-long procedural reforms and cast doubt on China’s commitment to ‘scientific, democratic, and law-based lawmaking’, but it also needlessly damaged the legislature’s own credibility and legitimacy and sowed distrust in the legislative process. After all, the average Chinese citizen is unlikely to grasp the NPCSC’s procedural intricacies well enough to identify the Reform Plan as a QSD and to understand that it could be passed through an abridged process. And, given that officials had promised—time and time again—to consult the public on any retirement reform, citizens were especially justified in expecting such an opportunity in this case. In the end, taking the procedural shortcut did not—and could not—end the controversy over delaying retirement, despite the censors’ best efforts. It would only make the next unpopular but necessary reform in China that much harder to enact.
See 陈云年谱中卷（修订本） [Chronicle of Chen Yun’s Life (Volume 2)] 527 (中共中央党史研究室 [Literature Rsch. Off., Cent. Comm. of the Chinese Communist Party] ed., rev. ed., 2015).
关于工人、职员退休处理暂行规定的问题解答 [Answers to Questions on the Interim Provisions on Handling the Retirement of Workers and Employees] 9 (中华人民共和国劳动部办公厅 [Gen. Off. of the Ministry of Labor of the People’s Republic of China] et al. eds., 1958).
See generally Xia Yuwen [夏育文], 劳动保险的退变 [The Decline of Labour Insurance], 中国社会保障 [China Soc. Sec.], nos. 9–10, Sept.–Oct. 2019, at 28.
Yun Wusheng [恽务生], 群众用智慧保卫了劳动保险制度 [The Masses Defended the Labour Insurance System with Their Wisdom], 中国社会保障 [China Soc. Sec.], no. 10, Oct. 1999, at 20, 20.
Xia Yuwen [夏育文], 104号文：退休制度的一块界碑 [Document No. 104: A Milestone in the Retirement System], 中国社会保障 [China Soc. Sec.], nos. 9–10, Sept.–Oct. 2019, at 36, 36.
See Feng Huijuan [冯慧娟], 我国退休职工队伍的变化和退休制度的沿革 [Changes in China’s Retired Workforce and the Evolution of the Retirement System], 中国劳动科学 [China Lab. Sci.], no. 9, 1986, at 23, 24; Melanie Manion, Politics and Policy in Post-Mao Cadre Retirement, 1992 China Q. 1, 6–9, 12–13, 18–19.
Yong Cai, China’s New Demographic Reality: Learning from the 2010 Census, 39 Population & Dev. Rev. 371, 382–83 (2013); Yong Cai & Yuan Cheng, Pension Reform in China: Challenges and Opportunities, in China’s Economy: A Collection of Surveys 45, 46 (Iris Claus & Les Oxley eds., 2015).
See Huoyun Zhu & Alan Walker, Population Ageing and Social Policies in China: Challenges and Opportunities, in The Routledge Handbook of Chinese Studies 191, 192–95 (Chris Shei & Weixiao Wei eds., 2015); Guoping Mao et al., China’s Ageing Population: The Present Situation and Prospects, in Population Change and Impacts in Asia and the Pacific 269, 284–85 (Jacques Poot & Matthew Roskruge eds., 2020); see also 国新办举行就业和社会保障情况新闻发布会图文实录 [Transcript with Images: Press Conference on Employment and Social Security Held by the SCIO], 中华人民共和国国务院新闻办公室 [State Council Info. Off. of the People’s Republic of China] (Feb. 26, 2021).
Qiushi Feng et al., Age of Retirement and Human Capital in an Aging China, 2015–2050, 35 Eur. J. Population 29, 31–34 (2018).
See, e.g., id. at 34–38.
See Virginia Harper Ho & Huang Qiaoyan, The Recursivity of Reform: China’s Amended Labor Contract Law, 37 Fordham Int’l L.J. 973, 1009 (2014); Mary E. Gallagher, Authoritarian Legality in China: Law, Workers, and the State 68 (2017).
Wang Zhu [王竹], 我国到底有多少部现行有效法律——兼论“准法律决定”的合宪性完善 [Exactly How Many Statutes Are Currently in Effect in China? With Comments on Improving the Constitutionality of “Quasi-Statutory Decisions”], 社会科学 [Soc. Sci.], no. 10, 2011, at 90, 92.
See Huang Jinrong [黄金荣], “规范性文件”的法律界定及其效力 [The Legal Definitions of “Normative Documents’ and Their Force], 法学 [Law. Sci.], no. 7, 2014, at 10, 14; Changhao Wei, Demystifying the NPC’s Quasi-Legislative Decisions, NPC Observer (last updated Mar. 18, 2024).
See Qin Qianhong [秦前红] & Liu Yida [刘怡达], “有关法律问题的决定”：功能、性质与制度化 [“Decisions on Legal Issues”: Functions, Nature, and Institutionalisation], 广东社会科学 [Soc. Sci. Guangdong], no. 6, 2017, at 210, 213–14; Jin Meng [金梦], 立法性决定的界定与效力 [The Definition and Force of Quasi-Statutory Decisions], 中国法学 [China Legal Sci.], no. 3, 2018, at 150, 154–55.
Cf. Wang Hanbin [王汉斌], 选举法和地方组织法修改的几个问题 [Several Issues in the Amendments to the Election Law and the Local Organic Law], in 社会主义民主法制文集（下） [Collection of Works on Socialist Democracy and Legal System (Volume 2)] 463, 483 (2012).
See Chen Peng [陈鹏], 全国人大常委会“抽象法命题决定”的性质与适用 [The Nature and Application of the NPC Standing Committee’s “Decisions with Abstract Legal Propositions”], 现代法学 [Mod. L. Sci.], no. 1, 2016, at 63, 71; Luo Zhaolin [罗兆麟], 授权立法监督机制研究 [Research on the Mechanisms for Overseeing Delegated Lawmaking], 2 立法前沿 [Devs. Legis.], 151, 163 (2019).
See Chen, supra note 16, at 70.
Jiang Hui [江辉], 有关法律问题的决定与法律的区别 [The Differences Between Decisions on Legal Issues and Statutes], 人大研究 [People’s Cong. Rsch.], no. 1, 2012, at 32, 32; see also Jiang Hui [江辉], 论全国人大及其常委会以决定方式行使立法权 [On the NPC and Its Standing Committee’s Exercise of Legislative Power Through Decisions], 环球法律评论 [Glob. L. Rev.], no. 1, 2023, at 94, 105–06.
See Jiang Hui [江辉], 论有关法律问题的决定的含义与识别 [On the Meaning and Identification of Decisions on Legal Issues], 36 中外法学 [Peking U. L.J.] 1363, 1377–78 (2024); Tan Qingzhi [谭清值], 全国人大决定行权方式的全面规范化——以《中华人民共和国立法法》第 68 条为制度支点 [Comprehensive Standardisation of the NPC’s Exercise of Power Through Decisions: Focusing on Article 68 of the Legislation Law of the People’s Republic of China], 政治与法律 [Pol. Sci. & L.], no. 1, 2024, at 25, 34.